Wednesday, February 15, 2012

Still More on the Birth Control Brouhaha

In yesterday’s post More on the Birth Control Brouhaha, I spent some time looking at other possible examples of exemptions from insurance coverage on the basis of religious belief. In response to that post, reader Karin offered a comment that is really worth considering in the light of this whole discussion:

I’d never heard this before and decided to do a little reading. Sure enough, Watchtower, the official site for Jehovah’s Witnesses, includes an article that states quite specifically that adherents to the faith ought not accept blood transfusions. There is even a subgroup of Jehovah’s Witnesses fighting to change this religious doctrine.

So if a Catholic-owned business should be able to exclude birth control from its insured benefits, then shouldn’t a Jehovah’s Witness-owned business be able to exclude blood transfusions from its insured benefits?

When my son was a few days old, he needed a blood transfusion. I suspect that it wasn’t inexpensive; I don’t know, though, because the insurance paid for it. I can’t begin to imagine how I would have felt if I’d been told that my insurance didn’t cover the blood transfusion necessary to save his life because employer had religious objections to blood transfusions.

Or maybe only some religions should be entitled to exemptions for their religious beliefs? Is that what opponents to the policy are saying?

I also want to take a very brief moment to look at how the right (Faux News in particular) has been deceptively spinning the issue. Yesterday, former Judge Andrew Napolitano appeared on Fox News to talk about the issue. After spending the first segment of the interview discussing how President Obama has acted unconstitutionally (without noting that Congress frequently authorizes the executive branch to issue rules and regulations, whether through the FDA, EPA, IRS, or any of a host of other departments, agencies, administrations, etc.), Napolitano states:

Can they force other religions to do things against their core beliefs because they — the secular government — think it should be done? Can they force Jewish people to eat pork? That’s ridiculous, but five years ago you would have said it’s ridiculous that they’ll make the Catholic Church pay for contraceptive devices.

(Emphasis added.) Note the deceptive spin? The new regulation does not force Catholics to use birth control. It doesn’t force a Catholic individual to violate his or her religious beliefs. Rather, it forces an employer to provide a standard set of insurance coverages. What do you think Napolitano would say if we were talking about blood transfusions and Jehovah’s Witness University (oops, Jehovah’s Witnesses apparently don’t believe in college education…). What does he say about preventing Native Americans from using peyote or Mormons from engaging in polygamy? And note further that, despite his suggestion to the contrary, this sort of policy has been in place in the states and even at the federal level for far more than five years (for example, this article from the Guttmacher Institutefrom 2004 notes that 20 states had a provision mandating contraception coverage and that different approaches had been taken to address religious objections);* it’s only as these policies relate to application under the new healthcare law that is bringing the issue to the fore now. Well, that, and the right’s unbridled hate for President Obama.

I hope that I’m done with this topic. Frankly, some of it has been a bit uncomfortable to write, especially as the Catholic Church seems to be the “bad guy” and, given how many of my friends are Catholic, that doesn’t make me feel good. But I do think that the issues are important. Anyway, I want to finish with a quote that I was directed to on Twitter from a writer who I don’t always see eye-to-eye with. And while the quote is incendiary, it is worth considering for the broader context of the voicing of outrage and doctrine:

I'm sorry but I find the protectors of child rapists preaching to women about contraception to be a moral obscenity. When all the implicated bishops and the Pope resign, ther [sic] replacements will have standing to preach.

A key challenge facing advocates of contraceptive coverage mandates is to ensure that any exemptions provided to employers who object to covering contraceptives on religious grounds are narrowly tailored to minimize the number of people denied such coverage. This effort received an important boost recently as the result of two court decisions in California and New York.

Of the 20 mandates now in effect, 13 have some type of exemption for employers who object to providing contraceptive coverage on religious grounds. The specific provisions of these exemptions vary widely across the states. For example, Maryland's law contains a broad exemption that simply permits religious employers to refuse to include contraceptive coverage, without defining the term “religious employers.”

The laws in California and New York are at the other end of the spectrum. Both permit an employer to refuse to cover contraceptives, even though it covers other prescription drugs, only if it has as its mission the inculcation of religious values, it primarily employs and serves people who share its religious tenets, and it falls under a U.S. tax code provision that applies to churches, church auxiliaries and religious orders.

Almost as soon as the California law went into effect, Catholic Charities of Sacramento filed suit. Interestingly, the organization readily acknowledged that it did not meet any of the tests required under the law; nonetheless, it alleged that the statute violated the establishment and free exercise clauses of the U.S. and California constitutions. In a strongly worded decision in March, the state supreme court disagreed.

One of the cornerstones of Catholic Charities' case was the allegation that the law interferes with matters of internal church governance. The court found this charge baseless: “This case does not implicate internal church governance; it implicates the relationship between a nonprofit pubic benefit corporation and its employees, most of whom do not belong to the Catholic Church. Only those who join a church impliedly consent to its religious governance on matters of faith and discipline.” Moreover, the court found the law to be narrowly tailored to serve the state’s compelling interest in eliminating gender discrimination. According to the court, a religiously affiliated organization not meeting the law’s requirements “becomes subject to the same obligations that apply to all other employers.”

In a similar ruling last year, a lower court in New York upheld a virtually identical exemption for religious employers; that ruling, in a suit brought by Catholic Charities of Albany and other organizations, is expected to be appealed to the Court of Appeals, the state’s highest court. Meanwhile, Catholic Charities of Sacramento has until the end of May to file an appeal with the U.S. Supreme Court.

4 Comments:

This topic will go away when all employees, including Catholics, understand the unintended consequences to themselves as potential employees of those who follow different faiths. In other words, when people wake up and realize the faith they've chosen to follow is not the only one entititled to this church-affiliated protection being demanded. Catholics aren't the "bad guys" but their leadership does have a problem recognizing the Church doesn't have a monopoly on the TRUTH. And, when it comes to birth control in particular, the leadership has failed to convince the majority of the TRUTH of Its teaching. That isn't much different than Jehovahs Witnesses being unable to convince the majority of us about the evils of blood transfusions. For some reason, people like Napolitano aren't able or willing to understand forcing someone to commit a legal act contrary to their religious beliefs isn't the same as preventing an employer from using the law to stop someone else from commiting that legal act. But, it still all rests on the fallacy the employer "pays" if the insurance coverage is an employee benefit yet doesn't "pay" if the employee uses after-tax net wages to get the insurance. I can't offhand think of any employers who consider benefit plans to be a gift to employees rather than just part of a compensation plan. As long as any insurance plan includes contraceptive drug coverage AND church-affiliated businesses pay their employees, the distinction between benefit and wage dollars is a red herring. And the instrusion on religious freedom based on who pays is an illogical argument. The real argument revolves around whether an employer may use one piece of a compensation plan in an attempt to impose some religious control over individual choices that are each employees to make.

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